Press Alt + R to read the document text or Alt + P to download or print.

No preview available

The URL can be used to link to this page

Home My WebLink AboutECAT C01-315 Retail Concession Agreement with Richard CashmanAGREEMENT FOR OPERATION OF RETAIL CONCESSION EAGLE COUNTY AIR TERMINAL CORPORATION i THIS AGREEMENT, made and entered into this day of by and between Eagle County Air Terminal Corporation, a not - for - profit corporation of the State of Colorado ( "CORPORATION "), and Richard H. Cashman, ( "CONCESSIONAIRE "). WITNESSETH: WHEREAS, CORPORATION is owner, constructor and operator of the new passenger Terminal Building and associated support facilities ( "TERMINAL BUILDING ") located on Eagle County Regional Airport in Eagle County, Colorado, and has the right to lease portions of the TERMINAL BUILDING and to grant operating privileges thereon subject to the terms and conditions hereinafter set forth; and WHEREAS, CONCESSIONAIRE desires to lease certain premises within the TERMINAL BUILDING, and use certain facilities at the TERMINAL BUILDING, and acquire certain rights and privileges from CORPORATION in connection with its use of the TERMINAL BUILDING and CORPORATION is willing to lease and grant same to CONCESSIONAIRE under terms and conditions hereinafter stated; and WHEREAS, CORPORATION has the power and authority to enter into this agreement; NOW, THEREFORE, for and in consideration of the premises and the mutual covenants and considerations herein contained, CORPORATION and CONCESSIONAIRE agree as follows: Article 1 Definitions Section 1.1 Definitions The terms and phases defined in this Article 1 for all purposes of this AGREEMENT shall have the following meanings: A. "Airport" shall mean Eagle County Regional Airport. B. "Auditor" shall mean the CORPORATION's Auditor and his authorized representative. C. "Concession Space" shall mean the spaces as generally depicted on the Terminal Space Plan attached hereto as Exhibit A, located within the TERMINAL BUILDING and shall include the plural where applicable. The CORPORATION and CONCESSIONAIRE acknowledge and agree that the dimensions of the CONCESSION SPACE as set forth in Exhibit A are approximate, that for purposes of calculating the Monthly Guarantee in Article 4 it is estimated as FAAGREDECAT Cashman Concession.wpd being approximately 270 square feet, and that, following the completion of construction, the precise dimensions and square footage shall be determined by the Manager and a revision to Exhibit A will be made, if necessary, depicting the dimensions and square footage of the CONCESSION SPACE as actually constructed, this action to be taken without the requirements of a formal amendment to this Agreement. D. "Concessionaire's Proposal" shall mean the Proposal as finally submitted by CONCESSIONAIRE and accepted by the CORPORATION and consisting of CONCESSIONAIRE's plans for designs, inventory and all of its plan of operation. E. "Date of Beneficial Occupancy" or "DBO" shall mean the day ten business days following the day on which the premises for CONCESSIONAIRE are deemed substantially complete. Substantial completion shall occur when the CORPORATION's architects certify that CONCESSIONAIRE premises have been substantially completed in accordance with the construction documents and are available to CONCESSIONAIRE to finish out its leased space. F. "Past Due Interest Rate" shall mean interest accruing at 18% per annum commencing on the fifth calendar date after the date such amount is due and owing until paid to CORPORATION. ARTICLE 2 Grant of Concession Rights Section 2.1 Concession Rights Granted. CORPORATION grants to CONCESSIONAIRE the right to occupy, improve and use the CONCESSION SPACE consistent with and subject to all the terms and provisions of this Agreement. Section 2.2 Uses and Privileges of CONCESSION SPACE. CONCESSIONAIRE shall enjoy the following privileges in connection with its use of the CONCESSION SPACE: A. The nonexclusive right, privilege and obligation to conduct and operate a retail concession at the TERMINAL BUILDING. CONCESSIONAIRE understands and agrees that it shall not engage in any other business on the AIRPORT under this agreement. B. No signs, poster or other display of advertising media, including material supplied by manufacturers of merchandise offered for sale, shall be installed by CONCESSIONAIRE on or about the TERMINAL BUILDING, including in the CONCESSION SPACE without the prior written approval of the CORPORATION. Permission will not be granted for any advertising material, fixture or equipment which extends beyond the CONCESSION SPACE. The CORPORATION intends to implement and enforce signage standards in the TERMINAL BUILDING. No temporary signs or displays shall be permitted without the prior written approval of the Manager. F:\AGREE\ECAT Cashman Concession.wpd 2 Section 2.3 Rights Not Exclusive. CORPORATION reserves the right to grant other CONCESSIONAIRES the right to sell food, beverages and other articles on CONCESSIONAIRE'S approved inventory in other locations in the TERMINAL BUILDING or AIRPORT, and CONCESSIONAIRE understands and agrees that its right to sell such articles is not exclusive. Section 2.4 Means of Access. CONCESSIONAIRE, its agents, invitees, guests, employees and suppliers have a non - exclusive right of ingress to and egress from the CONCESSION SPACE by a means of access located outside the boundaries of such space as specified by CORPORATION. Such access shall, without exception, be in common with such other persons (including, at the option of the CORPORATION, the general public) as the CORPORATION may authorize or permit, and the CORPORATION may at any time close, relocate, reconstruct or modify such means of access, provided that a reasonable convenient and adequate means of ingress and egress is available for the same purposes. This right of access is subject to the security requirements of the section herein entitled "Security ". Section 2.5 Right of Inspection. CORPORATION retains the full right of entry in and to the CONCESSION SPACE for any purpose necessary, incidental to or in connection with its obligations hereunder, or in the exercise of its functions, or for the purpose of making any inspection it deems necessary. Section 2.6 Employee Parking. CONCESSIONAIRE'S employees at the CONCESSION SPACE and, during periods of its construction in the TERMINAL BUILDING, its construction contractors, shall be entitled to the use of parking areas designated for TERMINAL BUILDING employees. CONCESSIONAIRE'S employees and construction contractors shall not park elsewhere on the AIRPORT, and any such parking will be treated as a civil and /or criminal trespass. CORPORATION reserves the right to limit the number of spaces to be made available to CONCESSIONAIRE, to designate specific parking spaces for some or all TERMINAL BUILDING tenants, to move, contract, and expand the parking area(s) designated for employee parking, and to make such rules and regulations for the use of the parking area(s) designated for employee parking, in its sole discretion. ARTICLE 3 Term Section 3.1 Term. This Agreement shall become effective on 12:01 a.m. local time on the Date of Beneficial Occupancy of the TERMINAL BUILDING hereinafter called the "Effective Date" and continue for four years, expiring at 12:01 a.m. on the fourth anniversary of the Date of Beneficial Occupancy subject to prior termination as provided in Article 8 hereof. Notwithstanding the foregoing, upon the defeasance of the bonds issued pursuant to the CORPORATION's Trust Indenture dated as of June 1, 1996, following maturity or earlier as provided in the Trust Indenture this Agreement shall terminate, as of the date of defeasance, and CONCESSIONAIRE shall vacate the premises leased hereunder within not more than ninety (90) days. CORPORATION will give not less than thirty (30) and not more than sixty (60) days notice of an intent to defease the bonds in FAAGREE\ECAT Cashman Concession.wpd < C accordance with the Trust Indenture. CORPORATION also will give CONCESSIONAIRE notice of the date of defeasance within two (2) business days following the actual defeasance. Section 3.2 Surrender of CONCESSION SPACE. Upon the expiration or earlier termination of this Agreement or on the date specified in any demand for possession by CORPORATION after any Default by CONCESSIONAIRE, CONCESSIONAIRE covenants and agrees to surrender possession of the CONCESSION SPACE to CORPORATION in the same condition as when first occupied, ordinary wear and tear excepted. Section 3.3 Holding Over. If CONCESSIONAIRE remains in possession of the leased premises after the expiration of this Agreement without any written renewal thereof, such holding over shall not be deemed as a renewal or extension of this Agreement, but shall create only a tenancy from month to month that may be terminated at any time by CONCESSIONAIRE or CORPORATION upon thirty (30) days written notice to the other party. Such holding over shall otherwise be upon the same terms and conditions as set forth in this agreement. ARTICLE 4 Compensation Section 4.1 Compensation. CONCESSIONAIRE covenants and agrees, without offset, deduction or abatement, to pay CORPORATION as compensation for the rights and privileges granted by CORPORATION as herein defined derived by the Concessionaire from the sale of all food and merchandise, a sum equal to a percentage of the monthly gross revenues, as herein defined, ( "Percentage Compensation Fee ") derived by the Concessionaire from the sale of all food and merchandise as follows: Accumulated Gross Revenues for the Term Year: Percentage: $0 - $285,000 10% $285,001 - $335,000 16% $335,001 and over 20% or a minimum monthly guarantee of $1,080.00 (with an increase to the monthly guarantee of 4% per year). 2001 -2002 Ski Sean December, 2001 (amount in words) (amount in numbers) nrY, ua 2002 amount in words) (amount in numbers) February, 2002 )n : One Thousand Eighty Dollars or Ten Percent of Gross, whichever is greater. $1,080 or 10% of gross, whichever is greater. One Thousand Eighty Dollars or Ten Percent of Gross, whichever is greater. $1,080 or 10% of gross, whichever is greater. FAAGREETCAT Cashman Concession.wpd 4 CIII (amount in words) One Thousand Eighty Dollars or Ten Percent of Gross, whichever is greater. (amount in numbers) $1,080 or 10% of gross, whichever is greater. March, 2002 (amount in words) One Thousand Eighty Dollars or Ten Percent of Gross, whichever is greater. (amount in numbers) $1,080 or 10% of gross, whichever is greater. April, 2002 (amount in words) Pro -rated for number of days open in month based on One Thousand Eighty Dollars. (amount in numbers) Pro -rated for number of days open in month based on $1,080. 2002 -2003 Ski Season : November, 2002 (amount in words) Pro -rated for number of days open in month based on one thousand, one hundred and twenty three dollars per month (amount in numbers) Pro -rated for number of days open in month based on $1,123 December, 2002 (amount in words) One Thousand, One Hundred and Twenty Three Dollars or Ten Percent of Gross, whichever is greater. (amount in numbers $1,123.00 or 10% of gross, whichever is greater January, 2003 (amount in words) One Thousand, One Hundred and Twenty Three Dollars or Ten Percent of Gross, whichever is greater. (amount in numbers) $1,123.00 or 10% of gross, whichever is greater February, 2003 (amount in words) One Thousand, One Hundred and Twenty Three Dollars or Ten Percent of Gross, whichever is greater. (amount in numbers) $1,123.00 or 10% of gross, whichever is greater March, 2003 (amount in words) One Thousand, One Hundred and Twenty Three Dollars or Ten Percent of Gross, whichever is greater. (amount in numbers) $1,123.00 or 10% of gross, whichever is greater April, 2003 (amount in words) Pro -rated for number of days open in month based on One Thousand, One Hundred and Twenty Three Dollars (amount in numbers) Pro -rated for number of days open in month based on $1,123.00 FA,AGREETCAT Cashman Concession.wpd c 2003 -2004 Ski Season : -' November, 2003 (amount in words) Pro -rated for number of days open in month based on one thousand, one hundred and sixty eight dollars per month. (amount in numbers) Pro -rated for number of days open in month based on $1,168.00 dollars per month. December, 2003 (amount in words) One Thousand, one hundred and sixty eight dollars or ten percent of gross, whichever is greater. (amount in numbers) $1,168.00 or 10% of gross, whichever is greater January, 2004 (amount in words) One Thousand, one hundred and sixty eight dollars or ten percent. of gross, whichever is greater. (amount in numbers) $1,168.00 or 10% of gross, whichever is greater February, 2004 (amount in words) One Thousand, one hundred and sixty eight dollars or ten percent of gross, whichever is greater. (amount in numbers) $1,168.00 or 10% of gross, whichever is greater March , 2004 (amount in words) One Thousand, one hundred and sixty eight dollars or ten percent of gross, whichever is greater. (amount in numbers) $1,168.00 or 10% of gross, whichever is greater April, 2004 (amount in words) Pro -rated for number of days open in month based on one thousand, one hundred and sixty eight dollars per month. (amount in numbers) Pro -rated for number of days open in month based on $1,168.00_ 2004 -2005 Ski Season : November, 2004 (amount in words) Pro -rated for number of days open in month based on one thousand, two hundred and fifteen dollars per month (amount in numbers) Pro -rated for number of days open in month based on $1,215.00 per month December, 2004 (amount in words) One thousand, two hundred and fifteen dollars or ten percent of gross, whichever is greater. (amount in numbers) $1,215.00 or 10% of gross, whichever is greater. January, 2005 FAAGREETCAT Cashman Concession.wpd 6 (amount in words) One thousand, two hundred and fifteen dollars or ten percent of gross, whichever is greater. (amount in numbers) $1,215.00 or 10% of gross, whichever is greater. February, 2005 (amount in words) One thousand, two hundred and fifteen dollars or ten percent of gross, whichever is greater. (amount in numbers) $1,215.00 or 10% of gross, whichever is greater. March, 2005 (amount in words) One thousand, two hundred and fifteen dollars or ten percent of gross, whichever is greater. (amount in numbers) $1,215.00 or 10% of gross, whichever is greater. April, 2005 (amount in words) Pro -rated for number of days open in month based on one thousand, two hundred and fifteen dollars (amount in numbers) Pro -rated for number of days open in month based on $1,215.00. Section 4.2 Gross Revenue: As used herein, the term "Gross Revenue" shall mean all billings and receipts from sales or services or doing business from the Concession Space, whether from sales or services rendered by Concessionaire, whether for cash or credit, regardless of collection in the case of the latter, and whether for retail or wholesale. It shall include all transactions, whether placed by telephone, in person, or by mail, and regardless of place or time of actual payment: excluding therefrom, however sales of postage stamps, newspapers, magazines, and books and pursuant to a discount program for Airport and /or Terminal Building employees which has been approved in writing in advance by Corporation, which approval shall be exercised in its sole discretion. When properly recorded and accounted for, a reduction of Gross Revenues shall be allowed for bona fide returns for credit, sales taxes collected for remittance to the State, County, or City tips and federal excise taxes (that must be separately stated) collected from the customer and remitted to the federal government by the concessionaire. There shall not be allowed from Gross Revenues any reduction for bad debts, loss from theft, or any deduction except as outlined above. Section 4.3 Payment of Compensation. A. Monthly Guarantee. The Monthly Guarantee shall be payable by CONCESSIONAIRE to CORPORATION in advance and without demand on the first day of the month for each of the months December through March and each additional month that the TERMINAL BUILDING has scheduled commercial air service with more than 25,000 passengers using the TERMINAL BUILDING as reasonably projected by the CORPORATION prior to the start of the month. The Monthly Guarantee commences upon the opening of the TERMINAL BUILDING or 60 days after execution of the Agreement, whichever is later "Commencement Date "). The Monthly Guarantee for any partial month during the Term of this Agreement shall be prorated on a per diem basis. FA\AGREETCAT Cashman Concession.wpd 7 r, B. Percentage Compensation Fee. By the 10th day of each month following the Commencement Date, CONCESSIONAIRE shall furnish to the Manager in a form acceptable to CORPORATION a true and accurate verified statement signed by an officer of CONCESSIONAIRE of its Gross Revenues for the preceding month, and shall pay to CORPORATION a sum of money which represents the difference between the Percentage Compensation Fee and the Monthly Guarantee for the previous month. Section 4.4 Title to CORPORATION's Compensation. Immediately upon CONCESSIONAIRE's receipt of monies from the sales of services and articles which it is authorized to sell under the terms of this Agreement, the percentages of said monies belonging to CORPORATION shall immediately vest in and become the property of the CORPORATION. CONCESSIONAIRE shall be responsible as trustee for said monies until the same are delivered to CORPORATION. Section 4.5 Interest on Past Due Amounts. Any payments not made to CORPORATION when due shall accrue interest at the Past Due Interest Rate, as herein defined. Section 4.6 Place and Manner of Payments. All sums payable to CORPORATION hereunder shall be made without notice at the following: Eagle County Air Terminal CORPORATION c/o Eagle County Regional AIRPORT Manager P.O. Box 850 Eagle, Colorado 81631 or at such other place as the Manager or his authorized representative may hereafter designate by notice in writing to CONCESSIONAIRE. All sums shall be made in legal tender of the United States. Any check given to the CORPORATION shall be received by it subject to collection, and CONCESSIONAIRE agrees to pay any charges, fees or costs incurred by the CORPORATION for such collection, including reasonable attorney's fees. Section 4.7 Books of Account and Auditing. CONCESSIONAIRE shall keep within the limits of Eagle County true and complete records and accounts of all Gross Revenues and business transacted, including daily bank deposits. Not later than February 28 of each and every year during the Term hereof, CONCESSIONAIRE shall furnish to CORPORATION a true and accurate statement of the total of all revenues and business transacted during the preceding calendar year (showing the authorized deductions or exclusions in computing the amount of such Gross Revenues and business transactions). Such statement shall be prepared and certified to be true and correct by an independent certified public accountant. Such statement shall be furnished for every calendar year in which business was transacted under this Agreement during the whole or any part of the year. CONCESSIONAIRE agrees to establish and maintain a system of bookkeeping satisfactory to CORPORATION's AUDITOR. Such system shall be kept in a manner as FAAGREETCAT Cashman Concession.wpd 8 C i to allow each location of the CONCESSIONAIRE's operations hereunder to be distinguished from all other locations or operations of CONCESSIONAIRE. The CORPORATION's authorized representative shall have access during normal business hours to such books and records. CONCESSIONAIRE shall keep and preserve for at least three years, or until sooner audited by CORPORATION, all sales slips, cash register tapes, sales books, bank books or duplicate deposit slips, and all other evidence of Gross Revenues and business transacted for such period. The CORPORATION's AUDITOR, Manager and other authorized representatives shall have the right at any time to audit all of the books of account, bank statements, documents, records, returns, papers and files of CONCESSIONAIRE relating to the Gross Revenues and business transacted. CONCESSIONAIRE, upon request, shall make all such documents available for examination at the CONCESSION SPACE. The CORPORATION may require CONCESSIONAIRE to install point -of -sale cash register equipment as part of its Concession Improvements. The cost of such requirement shall be reasonable in relation to the size of CONCESSIONAIRE's operation and volume of business. If CORPORATION determines after an audit for any year that the Gross Revenues and business transacted shown by CONCESSIONAIRE's statement for such year was understated by more than 3 %, CONCESSIONAIRE shall pay to CORPORATION the cost of such audit and the amount of any deficiency, plus interest on such amount at 18% per annum from the date due. The CORPORATION's right to perform such an audit shall expire three years after CONCESSIONAIRE's statement for that year has been delivered to CORPORATION. CONCESSIONAIRE expressly agrees that CORPORATION's AUDITOR, Manager and other authorized representatives may inspect any sales tax return or report and accompanying schedules and data which CONCESSIONAIRE may file pursuant to any retail sales tax regulations and waives any claim of confidentiality which it may have in connection therewith. ARTICLE 5 OPERATION AND USE OF CONCESSION SPACE Section 5.1 Operations. CONCESSIONAIRE agrees to conduct its business to accommodate the public using the TERMINAL BUILDING and to operate the concession in the following manner: A. CONCESSIONAIRE shall operate the concession in a first -class manner satisfactory to the CORPORATION. Service shall be prompt, clean, courteous and efficient. B. CONCESSIONAIRE shall supply sufficient goods and products to fully stock its CONCESSION SPACE. All foodstuff must be new, fresh and of top quality; all non -food articles must be new and of top quality. CONCESSIONAIRE shall charge only fair and reasonable prices for its goods and products, subject to the following: FAAGREMECAT Cashman Concession.wpd 9 CONCESSIONAIRE's initial inventory of goods submitted pursuant to the terms of Section 5.2 herein shall strictly conform to CONCESSIONAIRE'S PROPOSAL, unless otherwise authorized by CORPORATION. 2. Without exception, prices shall not be greater than 110% of "street prices" charged in non - AIRPORT retail shops offering similar articles in the Eagle County area, and shall be subject to the approval of the CORPORATION. Comparable retail shops shall be those set forth in CONCESSIONAIRE'S PROPOSAL as approved by CORPORATION. 3. CONCESSIONAIRE shall not in any manner misrepresent to its customers the quality or grade of products sold, the point of origin, or the size, weight or portion of food or beverage, or utilize false or deceptive merchandising terms or advertising. 4. Where an item has a pre- marked price by the manufacturer or distributor, CONCESSIONAIRE shall not charge a price to the public higher than such pre- marked price without notice to and prior written approval of the CORPORATION. C. CONCESSIONAIRE shall at all times retain at the CONCESSION SPACE an experienced manager of high quality retail service facilities fully authorized to represent and act for it in the operation of the concession and to accept service of all notices provided for herein. At times when this manager is not present at the AIRPORT, CONCESSIONAIRE shall assign, or cause to be assigned, a qualified subordinate to be in charge of the CONCESSION SPACE, services and facilities and to be available at the CONCESSION SPACE to act for such manager. D. During the required hours of operation, CONCESSIONAIRE shall provide personnel in sufficient number and quality necessary to conveniently and efficiently serve the public. Such personnel shall be thoroughly qualified, familiar with the business, courteous, informative and helpful to the public. The attire of such personnel shall be of the highest character and in keeping with that worn by personnel in similar first -class businesses. Personnel shall be attired in identifiable dress and at all times possess visible identification as to their name and employer. E. CONCESSIONAIRE shall make all deliveries of supplies, goods and products in such manner and at such times and locations as the CORPORATION may reasonably approve. Emergency deliveries may be made at other times subject to prior arrangements with the CORPORATION. F. CONCESSIONAIRE shall comply with all applicable federal, state and local laws and regulations governing retail or food service establishments FAAGREETCAT Cashman Concession.wpd 10 #; and shall allow duly authorized representatives of governmental entities access to the CONCESSION SPACE for inspection purposes. CONCESSIONAIRE agrees to obtain at its own expense, and maintain at all times, all licenses and certificates necessary for the operation of of its establishment and to comply with all applicable health, safety and sanitary laws, regulations and inspections concerning same. G. The CORPORATION shall have the right to make reasonable objections to the quality of food or products sold, the character of the service rendered the public, and the appearance and condition of the CONCESSION SPACE. CONCESSIONAIRE agrees to promptly discontinue or remedy any objectionable practice or condition within five (5) days after written notice by the CORPORATION. Section 5.2 Inventory. CONCESSIONAIRE shall prepare an inventory indicating items to be offered for sale and prices to be charged for each item. This inventory shall be subject to approval by the CORPORATION. CONCESSIONAIRE shall sell food and articles only in accordance with CONCESSIONAIRE'S PROPOSAL and the terms of this Agreement. CONCESSIONAIRE may provide such additional items as the CORPORATION may authorize in writing. CORPORATION, from time to time, and at its sole discretion, may require CONCESSIONAIRE to offer for sale other items that CORPORATION determines are necessary to serve the traveling public. If CONCESSIONAIRE adds items to its inventory, CONCESSIONAIRE shall submit the new inventory and prices to the CORPORATION for its prior written approval. CONCESSIONAIRE shall not offer for sale any food or articles or engage in any activity not specifically provided for under the terms of this Agreement, unless otherwise authorized in writing by the CORPORATION. Section 5.3 Hours of Operation. CONCESSIONAIRE agrees to keep its concession facilities open for business to the public not less than one (1)hour prior to the first scheduled airline departure or arrival until one (1) hour after the last actual airline departure or arrival on each day there are scheduled airline flights, unless otherwise authorized beforehand in writing by the CORPORATION. Section 5.4 Care of Area. CONCESSIONAIRE agrees that it will keep the CONCESSION SPACE in a neat, clean, safe, sanitary and orderly condition at all times, and further agrees that it will keep such area free at all times of all paper, rubbish, spills, and debris. CONCESSIONAIRE, at its own expense, shall collect and deposit all trash and refuse at frequent intervals at collection station locations specified by CORPORATION. Accumulation of boxes, cartons, barrels or other similar items shall not be permitted in any public area in the TERMINAL BUILDING. Section 5.5 Vending Machines. No amusement or vending machines or other machines operated by coins, tokens or credit cards shall be installed or maintained in or upon the CONCESSION SPACE except with the written permission of the CORPORATION. This prohibition includes, but not by way of limitation, sales from vending machines of such items as cigarettes, candy, maps, coffee, soft drinks, newspapers, stamps and insurance policies; telephones; dispensation of cash, money FAAGREETCAT Cashman Concession.wpd 11 orders and checks; and operation of mechanical or electronic game devices, electronic video games, and entertainment devices. Section 5.6 Compliance with all laws and Regulations. CONCESSIONAIRE agrees not to use or permit the CONCESSION SPACE to be used for any purpose prohibited by the laws of the United States or the State of Colorado or the resolutions or ordinances of Eagle County or AIRPORT rules and regulations, all as amended from time to time, and not otherwise authorized hereunder, and it further agrees that it will use the CONCESSION SPACE in accordance with all applicable federal, state and local laws, ordinances, resolutions and all rules and regulations adopted by the County or the CORPORATION for the management, operation and control of the TERMINAL BUILDING or the AIRPORT, either promulgated by the CORPORATION or Eagle County, on (respectively) its own initiative or in compliance with regulations or actions of the Federal Aviation Administration or other authorized federal agency. CONCESSIONAIRE further agrees to submit any report or reports or information which the CORPORATION is required by law or regulation to obtain from CONCESSIONAIRE or which CORPORATION may request relating to CONCESSIONAIRE's operations. Section 5.7 Compliance with Environmental Requirements. CONCESSIONAIRE, in conducting any activity on the CONCESSION SPACE, shall comply with all applicable local, state or federal environmental rules, regulations, statutes, laws or orders (collectively "Environmental Regulations "), including but not limited to Environmental Requirements regarding the storage, use and disposal of Hazardous Materials or Special Wastes to the Environment. CONCESSIONAIRE shall acquire all necessary federal, state, and local environmental permits and comply with all applicable federal and state environmental permit requirements. Section 5.8 Hazardous Use. CONCESSIONAIRE agrees that nothing shall be done or kept in the CONCESSION SPACE and no improvements, changes, alterations, additions, maintenance or repairs shall be made to the CONCESSION SPACE which might be unsafe or hazardous to any person or property. Further, CONCESSIONAIRE shall not do or permit to be done any act or thing upon the CONCESSION SPACE which will invalidate, suspend or increase the rate of any fire insurance policy required under this Agreement, or carried by CORPORATION, covering the CONCESSION SPACE or the buildings in which the CONCESSION SPACE is located or which, in the opinion of the CORPORATION, may constitute a hazardous condition that will increase the risks normally attendant upon the operations contemplated under this Agreement. If, by reason of any failure by CONCESSIONAIRE to comply with the provisions of this section, after receipt of notice in writing from CORPORATION, any fire insurance rate on the CONCESSION SPACE or on the buildings in which the same is located, shall at any time be higher than it normally would be, then CONCESSIONAIRE shall pay the CORPORATION, on demand, that part of all fire insurance premiums paid by the CORPORATION which have been charged because of such violation or failure of CONCESSIONAIRE; provided, that nothing herein shall preclude CONCESSIONAIRE from bringing, keeping or using on or about the CONCESSION SPACE such materials, supplies, equipment and machinery as are appropriate or customary in carrying on its business, or from carrying on the normal operations contemplated herein. FAAGREMECAT Cashman Concession.wpd 12 C, G Section 5.9 Structural, Electrical or System Overloading. CONCESSIONAIRE agrees that nothing shall be done or kept on the CONCESSION SPACE and no improvements, changes, alterations, additions, maintenance or repairs shall be made to the CONCESSION SPACE which might impair the structural soundness of the building, result in an overload of utility, plumbing, or HVAC systems serving the TERMINAL BUILDING or interfere with electric, electronic or other equipment at the AIRPORT. In the event of violations hereof, CONCESSIONAIRE agrees to immediately remedy the violation at CONCESSIONAIRE's expense. Section 5.10 Noise, Odors, Vibrations and Annoyances. CONCESSIONAIRE shall conduct its operations in an orderly and proper manner so as not to commit any nuisance in the CONCESSION SPACE or annoy, disturb or be offensive to others in the TERMINAL BUILDING and shall take all reasonable measures, using the latest known and practicable devices and means, to eliminate any unusual, nauseous or objectionable noise, gases, vapors, odors and vibrations and to maintain the lowest possible sound level in its operations. Section 5.11 Accessibility CONCESSIONAIRE shall not do or permit to be done anything which might interfere with the effectiveness or accessibility of utility, heating, ventilating or air conditioning systems or portions thereof on the CONCESSION SPACE or elsewhere on the AIRPORT, nor do or permit to be done anything which may interfere with free access and passage in the CONCESSION SPACE or the public areas adjacent thereto, or hinder police, firefighting or other emergency personnel in the discharge of their duties. CONCESSIONAIRE shall not place any additional lock of any kind upon any window or interior or exterior door in the CONCESSION SPACE, or make any change in any existing door or window lock or the mechanism thereof, unless a key therefor is maintained on the CONCESSION SPACE, nor refuse, upon the expiration or sooner termination of this Agreement, to surrender to CORPORATION any and all keys to the interior or exterior doors on the CONCESSION SPACE, whether said keys were furnished to or otherwise procured by CONCESSIONAIRE. If any keys furnished to CONCESSIONAIRE by CORPORATION are lost, CONCESSIONAIRE shall pay CORPORATION, on demand, the cost for replacement thereof. Section 5.12 No Action. CONCESSIONAIRE agrees not to allow or permit any sale by auction or hawking on the CONCESSION SPACE. Section 5.13 Restrictions on Changes and Alterations. Subject to the requirements of the section herein entitled "Renovation of CONCESSION SPACE ", CONCESSIONAIRE agrees not to improve, change, alter, add to, remove or demolish the Concession Improvements, as defined herein, or any improvements, on the CONCESSION SPACE without the prior written consent of the CORPORATION. CONCESSIONAIRE must comply with all conditions which may be imposed by the CORPORATION, in its sole discretion. Full and complete specifications for all work and improvements, along with a statement of the time required to complete such work shall be submitted to and approved in writing by the CORPORATION before construction work commences. Copies of plans for all changes or alterations shall be given to the CORPORATION for review and written approval prior to commencement of construction. FAAGREETCAT Cashman Concession.wpd 13 First -class standards of design and construction will be required in connection with all such work, facilities and improvements, and all improvements shall conform with applicable statutes, ordinances, building codes, regulations and other general requirements of CORPORATION, procurement of general liability and builder's risk insurance and performance and payment bonds, and compliance with worker's compensation, prevailing wage, MBE/WBE participation requirements, and compliance with the Americans with Disabilities Act, 42 U.S.C. 12,000 et sea., and its regulations. The approval given by CORPORATION shall not constitute a representation or warranty as to such conformity; responsibility therefor shall at all times remain with CONCESSIONAIRE. Approval by CORPORATION shall extend to and include consideration of architectural and aesthetic matters, and CORPORATION expressly reserves the right to reject any designs submitted and to require CONCESSIONAIRE to resubmit designs and layout proposals until they meet with CORPORATION's approval. CORPORATION agrees to act promptly upon a request for approval of such plans and /or revisions thereto. Section 5.14 Renovation of CONCESSION SPACE. At any time no earlier than the completion of year two and no later than the completion of year three of the term of this Agreement, CONCESSIONAIRE shall, at its sole cost and expense, have completed renovating and refurbishing the Concession Improvements in the CONCESSION SPACE. All renovating and refurbishing shall be subject to prior written approved as to architectural and aesthetic matters by the CORPORATION. Section 5.15 Title to Improvements. CONCESSIONAIRE agrees that all improvements to the CONCESSION SPACE, including approved changes and renovations, which are affixed to the realty, shall become the property of the CORPORATION upon their completion and acceptance by CORPORATION. SECTION 5.16 Removal of CONCESSIONAIRE'S Equipment. CONCESSIONAIRE shall retain title to and shall remove, at its sole cost, prior to the expiration or termination of this Agreement, all of CONCESSIONAIRE's Equipment, as hereinafter defined. "CONCESSIONA[RE's Equipment" shall mean all equipment, apparatus, machinery, signs, furnishings, trade fixtures and personal property installed by CONCESSIONAIRE and used in the operation of the business of CONCESSIONAIRE (as distinguished from the use and operation of the CONCESSION SPACE) which is listed on an annual inventory list submitted by CONCESSIONAIRE and approved by the CORPORATION. If such removal shall injure or damage the CONCESSION SPACE, CONCESSIONAIRE agrees, at its sole cost, at or prior to the expiration or termination of this Agreement, to repair such injury or damage in good and workmanlike fashion and to place the CONCESSION SPACE in the same condition as the CONCESSION SPACE would have been if such CONCESSIONAIRE's Equipment had not been installed. If CONCESSIONAIRE fails to remove any of CONCESSIONAIRE's Equipment by the expiration or termination of this Agreement, CORPORATION may, at its option, keep and retain any such CONCESSIONAIRE's Equipment or dispose of the same and retain any proceeds therefrom, and CORPORATION shall be entitled to recover from CONCESSIONAIRE any costs of CORPORATION in removing the same and in restoring FAAGREETCAT Cashman Concession.wpd 14 the CONCESSION SPACE in excess of the actual proceeds, if any, received by CORPORATION from disposition thereof. ARTICLE 6 UTILITIES AND SERVICES Section 6.1 CORPORATION Improvements and Services. CORPORATION shall provide and maintain, water, sewer, general lighting, electrical power, and heating and air - conditioning for the TERMINAL BUILDING and make them available to the CONCESSION SPACE. If CONCESSIONAIRE requires additional lighting, electrical power, telephone outlets, or adjustments to the air conditioning system, such additional improvements or services shall be subject to the prior written approval of CORPORATION, and any such improvements shall be made at CONCESSIONAIRE's expense. Section 6.2 Common Use Services. The CORPORATION may establish common use services at the AIRPORT, including but not limited to trash and refuse removal, deliveries, industrial waste handling, recycling, and security guards. The CORPORATION reserves the right to establish charges for common use services based upon documented actual costs. Trash. sewer, and deliveries will be common use services which CONCESSIONAIRE may be required to use and pay its prorata actual share; however, other common use services may be utilized at CONCESSIONAIRE's option. CONCESSIONAIRE agrees to pay the charges for those common use services which are utilized by CONCESSIONAIRE. Section 6.3 Interruption of Services. CONCESSIONAIRE agrees that CORPORATION shall not be liable for failure to supply any utility services. CORPORATION reserves the right to temporarily discontinue utility services at such time as may be necessary by reason of accident, unavailability of employees, repairs, alterations or improvements or whenever by reason of strikes, lockouts, riots, acts of God or any other happenings beyond the control of the CORPORATION, CORPORATION is unable to furnish such utility services. CORPORATION shall not be liable for damages to persons or property for any such discontinuance, nor shall such discontinuance in any way be construed as cause for abatement of compensation or operate to release the CONCESSIONAIRE from any of its obligations hereunder, except as otherwise provided in the section entitled "Damage, Destruction or Loss." ARTICLE 7 Indemnity, Insurance and Bonds Section 7.1 Indemnity. CONCESSIONAIRE hereby agrees to release and indemnify and save harmless County and CORPORATION, its officers, agents and employees from and against any and all loss of or damage to property, or injuries to or death of any person or persons, including property and employees or agents of the CORPORATION, and shall defend, indemnify and save harmless County and CORPORATION, its officers, agents and employees from any and all claims, damages, suits, costs, expense, liability, actions, penalties or proceedings of any kind or nature whatsoever, including worker's FAAGREETCAT Cashman Concession.wpd 15 � C compensation claims, of or by anyone whomsoever, in any way resulting from, or arising out of, directly or indirectly, its operations in connection herewith, its construction of the Concession Improvements, or its use or occupancy of any portion of the AIRPORT and including acts and omissions of officers, employees, representatives, suppliers, invitees, contractors, subcontractors, and agents of the CONCESSIONAIRE; provided, that the CONCESSIONAIRE need not release, indemnify or save harmless the County and CORPORATION, its officers, agents and employees from damages resulting from the sole negligence of the County's and CORPORATION's officers, agents and employees. The minimum insurance requirements prescribed herein shall not be deemed to limit or define the obligations of CONCESSIONAIRE hereunder. Section 7.2 Insurance. CONCESSIONAIRE further agrees to secure at its own expense, and to keep in force at all times during the Term hereof, Comprehensive General Public Liability Insurance in the minimum amount of One Million Dollars ($1,000,000.00) bodily injury and property damage combined single limit each occurrence. The required insurance coverage also shall include Personal Injury, Blanket Contractual Coverage for this Agreement, and Independent Contractors Coverage. CONCESSIONAIRE shall also maintain in force, during the term of this Agreement, Automobile Liability Insurance, Comprehensive Form, which shall insure all CONCESSIONAIRE's owned or hired limousines and /or other vehicles used by CONCESSIONAIRE at AIRPORT pursuant to this Agreement, in the minimum amount of One Million Dollars ($1,000,000.00), Bodily Injury and Property Damage Combined Single Limit per occurrence. CONCESSIONAIRE shall also maintain in force during the term of this Agreement Workers Compensation and Employers Liability Insurance in accordance with the provisions of Colorado law. The limit of such insurance coverage shall be for statutory Worker's Compensation benefits, and shall not be less than One Hundred Thousand Dollars ($100,000.00) for employers liability insurance. CONCESSIONAIRE agrees that County and CORPORATION shall be named as an additional insured under such policy or policies of insurance and said policy or policies shall include the severability of interest "cross over" provision. A certificate or certificates evidencing such insurance coverage shall be filed with CORPORATION within ten (10) days after execution of this Agreement, and said certificate(s) shall provide that such insurance coverage will not be canceled or reduced without at least thirty (30) days prior written notice to CORPORATION. At least ten (10) days prior to the expiration of said insurance policy or policies, a certificate showing that such insurance coverage has been renewed or extended shall be filed with CORPORATION. If such coverage is canceled or reduced, CONCESSIONAIRE shall within seven (7) days of notice of cancellation or reduction, but in any event more than fifteen (15) days before the effective date of said cancellation or reduction, file with CORPORATION a certificate showing that the required insurance has been reinstated in full, or provided through another insurance company or companies. In the event that CONCESSIONAIRE shall at any time fail to provide CORPORATION with the insurance required under this section, CORPORATION may immediately terminate this Agreement. FAAGREETCAT Cashman Concession.wpd 16 aJ �t The insurance carried by the CONCESSIONAIRE, as required by this Agreement, shall be primary over any insurance carried by the CORPORATION for the CORPORATION's own protection. A copy of the insurance representative's license, or other legal proof of his /her authorization to sign the Certificate of Insurance for and on behalf of the insurance company /companies shown thereon, must be attached to the Certificate of Insurance. Facsimile stamped signature on the Certificate will not be accepted. The Certificate must be signed by the insurance company's authorized representative. The CORPORATION will conditionally accept self- insurance under this section, subject to review and approval of appropriate County and State requirements. All preceding coverages and limits will apply. Section 7.3 Performance Bond. Upon execution of this Agreement, CONCESSIONAIRE shall deliver to the CORPORATION, and maintain in effect at all times throughout the Term, a valid corporate performance bond, or such other acceptable surety as first approved in writing by CORPORATION, in an amount equal to the sum of five months Monthly Guarantees, which amount is subject to increase by the CORPORATION. Such bond shall be payable without condition to the CORPORATION and guarantee to the CORPORATION full and faithful performance of all of the terms and provisions of this Agreement by CONCESSIONAIRE, as said Agreement may be amended, supplemented or extended. All bonds shall be in forms satisfactory to CORPORATION, and be executed by such sureties as are satisfactory to CORPORATION and (a) are licensed to conduct business in the State of Colorado, and (b) are named in the current list of "Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies" as published in Circular 570 (amended) by the Audit Staff Bureau of Accounts, U.S. Treasury Department. All bonds signed by an agent must be accompanied by a certified copy of the authority to act. If the surety on any bond furnished by CONCESSIONAIRE is declared bankrupt, or becomes insolvent, or its right to do business in Colorado is terminated, or it ceases to meet the requirements of clauses (a) and (b) of the preceding paragraph, CONCESSIONAIRE shall within five days thereafter substitute another bond and surety, both of which shall be acceptable to CORPORATION. Section 7.4 No Personal Liability. No director, officer or employee of either party hereto shall be held personally liable under this Agreement or because of its execution or attempted execution. Section 7.5 Taxes, Licenses, Liens and Fees. CONCESSIONAIRE agrees to promptly pay all taxes, excises, license fees and permit fees of whatever nature applicable to its operations hereunder and to take out and keep current all municipal, state or federal licenses required for the conduct of its business at and upon the CONCESSION SPACE and further agrees not to permit any of said taxes, excises, license fees or permit fees to become delinquent. CONCESSIONAIRE also agrees not to permit any mechanic's or materialman's or any other lien to become attached or be foreclosed upon the CONCESSION SPACE or improvements thereto, or any part or FAAGREETCAT Cashman Concession.wpd 17 C parcel thereof, by reason of any work or labor performed or materials furnished by any mechanic or materialman. CONCESSIONAIRE agrees to furnish to the CORPORATION, upon request, duplicate receipts or other satisfactory evidence showing the prompt payment by it of Social Security, unemployment insurance and worker's compensation insurance, and all required licenses and all taxes. CONCESSIONAIRE further agrees to promptly pay when due all bills, debts and obligations incurred by it in connection with its operations hereunder and not to permit the same to become delinquent and to suffer no lien, mortgage, judgment or execution to be filed against the CONCESSION SPACE or improvements thereon which will in any way impair the rights of the CORPORATION under this Agreement. ARTICLE 8 DEFAULT AND REMEDIES Section 8.1 Default. CONCESSIONAIRE shall be in default under this Agreement if CONCESSIONAIRE: A. Fails to timely pay when due to CORPORATION the compensation or any other payment required hereunder; or B. Is in default under any other Agreement with CORPORATION or Eagle County; or C. Becomes insolvent, or takes the benefit of any present or future insolvency or bankruptcy statute, or makes a general assignment for the benefit of creditors, or consents to the appointment of a receiver, trustee or liquidator of any or substantially all of its property; or D. Transfers its interest under this Agreement, without the prior written approval of CORPORATION, by reason of death, operation of law, assignment, sublease or otherwise, to any other person, entity or CORPORATION; or E. Fails to timely submit plans and specifications, bonds and other preconstruction submittals, fails to promptly begin and complete construction of concession improvements, or fails to occupy and use the CONCESSION SPACE after construction is completed; or F. Abandons, deserts or vacates the CONCESSION SPACE; or G. Suffers any lien or attachment to be filed against the CONCESSION SPACE, the AIRPORT or CORPORATION's property because of any act or omission of CONCESSIONAIRE, and such lien or attachment is not discharged or contested by CONCESSIONAIRE in good faith by proper legal proceedings within 20 days after receipt of notice thereof by CONCESSIONAIRE; or H. Fails to keep, perform and observe any other promise, covenant or agreement set forth in this Agreement and such failure continues for a period of more than 30 days after delivery by CORPORATION of a written notice of such breach or FAAGREETCAT Cashman Concession.wpd 18 01 default, except where a shorter period is specified herein, or where fulfillment of its obligation requires activity over a period of time and CONCESSIONAIRE within 10 days of notice commences in good faith to perform whatever may be required to correct its failure to perform and continues such performance without interruption except for causes beyond its control; or Gives its permission to any person to use for any illegal purpose any portion of the TERMINAL BUILDING made available to CONCESSIONAIRE for its use under this Agreement. Section 8.2 Remedies. If CONCESSIONAIRE defaults in any of the covenants, terms and conditions herein, the CORPORATION may exercise any one or more of the following remedies: A. CORPORATION may elect to allow this Agreement to continue in full force and effect and to enforce all of CORPORATION's rights and remedies hereunder, including without limitation the right to collect compensation as it becomes due together with Past Due Interest; or B. CORPORATION may cancel and terminate this Agreement and repossess the CONCESSION SPACE, with or without process of law, and without liability for so doing, upon giving 30 days written notice to CONCESSIONAIRE of its intention to terminate, at the end of which time all the rights hereunder of the CONCESSIONAIRE shall terminate, unless the default, which shall have been stated in such notice, shall have been cured within such 30 days. Notwithstanding the foregoing, during the Term herein, CONCESSIONAIRE shall be allowed only two notices of default hereunder which it may cure within the time specified in this section. The third notice shall be final and without opportunity for cure and CORPORATION, in its sole discretion, may elect therein (1) to cancel and terminate all of the rights hereunder of the CONCESSIONAIRE, and CORPORATION may, upon the date specified in such third notice, reenter the CONCESSION SPACE and remove therefrom all property of the CONCESSIONAIRE and store the same at the expense of the CONCESSIONAIRE, or (2) to proceed under subparagraph C. below. If CORPORATION elects to terminate, CONCESSIONAIRE shall be liable to CORPORATION for all amounts owing at the time of termination, including but not limited to compensation due plus interest thereon at the Past Due Interest Rate together with any other amount to fully compensate CORPORATION for all loss of compensation, damages, and costs, including attorney's fees, caused by CONCESSIONAIRE's failure to perform its obligations hereunder, or which in the ordinary course would likely result therefrom. C. CORPORATION may elect to reenter and take possession of the CONCESSION SPACE and expel CONCESSIONAIRE or any person claiming under CONCESSIONAIRE, and remove all effects as may be necessary, without prejudice to any remedies for damages or breach. Such reentry shall not be construed as termination of this Agreement unless a written notice specifically so F: AGREE\ECAT Cashman Concession.wpd 19 cl f states; however, CORPORATION reserves the right to terminate the Agreement at any time after reentry. Following reentry, the CORPORATION may relet the CONCESSION SPACE, or any portion thereof, for the account of CONCESSIONAIRE, on such terms and conditions as CORPORATION may choose, and may make such repairs or improvements as it deems appropriate to accomplish the reletting. CORPORATION shall not be responsible for any failure to relet or any failure to collect compensation due for such reletting. CONCESSIONAIRE shall be liable to CORPORATION for all costs of reletting, including attorney's fees and repairs or improvements. Notwithstanding re -entry by CORPORATION, CONCESSIONAIRE shall continue to be liable for all amounts due as compensation under this Agreement, on the dates specified and in such amounts as would be payable if default had not occurred. Upon expiration of the Term, or any earlier termination of the Agreement by CORPORATION, CORPORATION, having credited to the account of CONCESSIONAIRE any amounts recovered through reletting, shall refund, without interest, any amount which exceeds the compensation, damages, and costs payable by CONCESSIONAIRE under this Agreement. Section 8.3 Remedies Cumulative. The remedies provided in this Agreement shall be cumulative and shall in no way affect any other remedy available to CORPORATION under law or equity. Section 8.4 Waivers. No failure of CORPORATION to insist upon the strict performance of a term, covenant or agreement contained in this Agreement, no failure by CORPORATION to exercise any right or remedy under this Agreement, and no acceptance of full or partial payment during the continuance of any default by CONCESSIONAIRE shall constitute a waiver of any such term, covenant or agreement or a waiver of any such right or remedy or a waiver of any default by CONCESSIONAIRE. Article 9 DAMAGE, DESTRUCTION OR LOSS Section 9.1 Damage to or Destruction of CONCESSION SPACE. If the CONCESSION SPACE, or any portion thereof, is destroyed or damaged by fire or otherwise to an extent which renders it unusable, CORPORATION may rebuild or repair any portions of the building structure destroyed or damaged, and, if the cause was beyond the control of CONCESSIONAIRE, the obligation of CONCESSIONAIRE to pay the compensation hereunder shall abate as to such damaged or destroyed portions during the time they are unusable. If CORPORATION elects not to proceed with the rebuilding or repair of the building structure, it shall give notice of its intent within 90 days after the destruction or damage. CONCESSIONAIRE may then, at its option, cancel and terminate this Agreement. Section 9.2 Cooperation in Event of Loss. If CORPORATION elects to rebuild, CONCESSIONAIRE must replace all Concession Improvements at its sole cost. F:\AGREE\ECAT Cashman Concession.wpd 20 C-1 C CORPORATION and CONCESSIONAIRE shall cooperate with each other in the collection of any insurance proceeds which may be payable in the event of any loss or damage. Section 9.3 Loss or Damage to Property. CORPORATION shall not be liable for any loss of property by theft or burglary from the AIRPORT or for any damage to person or property on the AIRPORT resulting from lightning, or water, rain or snow, which may come into or issue or flow from any part of the AIRPORT, or from the pipes, plumbing, wiring, gas or sprinklers thereof or that may be caused by the CORPORATION's employees or any other cause, and CONCESSIONAIRE agrees to make no claim for any such loss or damage at any time, except for any abatement of compensation or right to insurance proceeds provided for in this Section. Section 9.4 Mutual Waiver /Insurance Coverage. CORPORATION and CONCESSIONAIRE each waive any and every claim for recovery from the other for any and all loss of or damage to the CONCESSION SPACE or to the contents thereof, which loss or damage is covered by valid and collectible fire and extended insurance policies, to the extent that such loss or damage is recoverable under such insurance policies. Since this mutual waiver will preclude the assignment of any such claim by subrogation or otherwise to an insurance company or any other person, CONCESSIONAIRE agrees to give to each insurance company which has issued, or may issue, to the CONCESSIONAIRE policies of fire and extended coverage insurance, written notice of the terms of this mutual waiver, and to have such insurance policies properly endorsed, if necessary, to prevent the invalidation of the insurance coverage by reason of this waiver. Article 10 MISCELLANEOUS PROVISIONS Section 10.1 Agreement Binding Upon Successors. This Agreement, subject to the provisions of the section entitled "Assignment ", shall be binding upon and extend to the heirs, personal representatives, successors and assigns of the respective parties hereto. Section 10.2 Agreement Made in Colorado. This Agreement shall be deemed to have been made in and shall be construed in accordance with the laws of the State of Colorado. Section 10.3 Agreement Subordinate to Agreements with "United States ". This Agreement is subject and subordinate to the terms, reservations, restrictions and conditions of any existing or future agreements between CORPORATION or Eagle County and the United States, the execution of which has been or may be required as a condition precedent to the transfer of federal rights or property to Eagle County for AIRPORT purposes and the expenditure of federal funds for the development of the AIRPORT or airport system. The provisions of the attached Appendices 1, 2 and 3 are incorporated herein by reference. Section 10.4 Agreement Subordinate to Ground Lease with Eagle County. This agreement is subject to the written approval of Eagle County and is subject and FA\AGREETCAT Cashman Concession.wpd 21 C C11 subordinate to the terms, reservation, restrictions and conditions of the Ground Lease and any existing or future agreements between CORPORATION and Eagle County. Section 10.5 Assignment. CONCESSIONAIRE shall not assign this Agreement or in any way transfer or hypothecate any of its interest in this Agreement without first obtaining the written consent of the CORPORATION, which consent will not be unreasonably withheld, provided that CONCESSIONAIRE acknowledges that CORPORATION need not consent to any such assignment or subletting at any time. As used herein, "assignment" means and includes, but is not limited to, (i) the grant or transfer of any right, title, possession, lien, encumbrance, security interest or other interest in, on or to five percent (5 %) or more of the stock or other ownership interest of CONCESSIONAIRE, (ii) grants or transfers to a single person or entity, including to any other person(s) and entity(ies) directly or indirectly controlled by it or which directly or indirectly control it, of any right, title, possession, lien, encumbrance security interest or other interest in, on or to the stock or other ownership interest which aggregate five percent (5 %) or more of the stock or other ownership interest of CONCESSIONAIRE, (iii) if CONCESSIONAIRE is a limited liability company, a change in the chief operating officer, manager or other person responsible for the day -to -day performance by CONCESSIONAIRE of the Agreement, (iv) the grant or transfer of any right, title, lien, encumbrance, security interest or other interest in, on or to some or all of the income or profits (however they may be measured or defined, e.g., gross income, gross profit, operating profit, net profit) of CONCESSIONAIRE, and (v) the grant or transfer of any right, title, lien, encumbrance, security interest or other interest in, on or to some or all of the cash flow (however it may be measured or defined) of CONCESSIONAIRE. If CONCESSIONAIRE shall assign or attempt to assign its interest in the whole or any part of this Agreement in violation of this section, such assignment shall be void and this Agreement shall thereupon automatically terminate. CORPORATION's consent to one assignment shall not be deemed to be a consent to any subsequent assignment. Section 10.6 Bond Indentures. This Agreement is in all respects subject and subordinate to any and all CORPORATION bond indentures applicable to the TERMINAL BUILDING and AIRPORT and to any other bond indentures which should amend, supplement or replace such bond indentures. The parties to this Agreement acknowledge and agree that all property subject to this Agreement which was financed by the net proceeds of tax - exempt bonds is owned by CORPORATION or Eagle County, and CONCESSIONAIRE agrees not to take any action that would impair, or omit to take any action required to confirm, the treatment of such property as owned by CORPORATION or Eagle County for purposes of Section 142(b) of the Internal Revenue Code of 1986, as amended. In particular, the CONCESSIONAIRE agrees to make, and hereby makes, an irrevocable election (binding on itself and all successors in interest under this Agreement) not to claim depreciation or an investment credit with respect to any property subject to this Agreement which was financed by the net proceeds of tax - exempt bonds and shall execute such forms and take such other action as CORPORATION or Eagle County may request in order to implement such election. Section 10.7 Force Majeure. Neither party hereto shall be liable to the other for any failure, delay or interruption in the performance of any of the terms, covenants or conditions of this Agreement due to cau §es beyond the control of that party, including FAAGUMECAT Cashman Concession.wpd 22 without limitation strikes, boycotts, labor disputes, embargoes, shortages of materials, acts of God, acts of the public enemy, acts of superior governmental authority, weather conditions, floods, riots, rebellion, sabotage or any other circumstance for which such party is not responsible or which is not in its power to control, but in no event shall this paragraph be construed so as to allow CONCESSIONAIRE to reduce or abate its obligation to pay the Monthly Guarantee or Percentage Fee herein. Section 10.8 Inconvenience During Construction. CONCESSIONAIRE recognizes that from time to time during the Term of this Agreement, it may be necessary for CORPORATION to commence or complete programs of construction, expansion, relocation, maintenance and repair in order that the TERMINAL BUILDING and its facilities may be completed and operated as ECAT determines, and that such construction, expansion, relocation, maintenance and repair may inconvenience the CONCESSIONAIRE in its operation at the AIRPORT. CONCESSIONAIRE agrees that no liability shall attach to CORPORATION or Eagle County, its officers, agents, employees, contractors, subcontractors and representatives by way of such inconveniences, and CONCESSIONAIRE waives any right to claim damages or other consideration therefrom. SECTION 10.9 Delay in Opening. CONCESSIONAIRE agrees that no liability shall attach to the CORPORATION or Eagle County, its officers, agents and employees by reason of any efforts or action toward implementation of any present or future plans for the TERMINAL BUILDING, or by reason of any delay in opening of the TERMINAL BUILDING, and waives any right to claim damages or other consideration arising therefrom. Section 10.10 Nondiscrimination. In connection with the performance of its rights, privileges and obligations under this Agreement, CONCESSIONAIRE agrees not to refuse to hire, discharge, promote or demote, or to discriminate in matters of compensation against any person otherwise qualified, solely because of race, color, religion, national origin, gender, age, military status, sexual orientation, marital status, or physical or mental disability, and CONCESSIONAIRE further agrees to insert the foregoing provision in all subcontracts hereunder. CONCESSIONAIRE further agrees to the provisions set forth in Appendix 4, and to insert the provisions thereof into all subcontracts hereunder. CONCESSIONAIRE further agrees to the provisions regarding Disadvantaged Business Enterprises set forth in Appendices 5 and 6. Section 10.11 Not Partnership. Notwithstanding the provisions herein for payment by CONCESSIONAIRE to CORPORATION of sums based upon a percentage of Gross Revenues, it is expressly understood and agreed that the CORPORATION shall not be construed or held to be a partner, associate or joint venturer of CONCESSIONAIRE in the conduct of its business. CONCESSIONAIRE shall at all times have the status of an independent contractor without the right or authority to impose tort or contractual liability upon the CORPORATION. Section 10.12 Notices. All notices required to be given to CORPORATION or CONCESSIONAIRE hereunder shall be in writing and sent by first class mail, facsimile (with an original by first class mail), or personal delivery to: FAAGREBECAT Cashman Concession.wpd 23 C CONCESSIONAIRE: C; Eagle County Air Terminal CORPORATION c/o Eagle County Regional Airport Manager P.O. Box 850 Eagle, Colorado 81631 Phone: (970) 524 -8246 Fax: (970) 524 -8247 Richard H. Cashman P.O. Box 1595 Basalt, Colorado 81621 Phone: (970) 927 -9116 Either party hereto may designate in writing from time to time the address of substitute or supplementary persons within the State of Colorado to receive such notices. The effective date of service of any such notice shall be three calendar days after the date such notice is mailed, the date it is personally delivered or the first business day after delivery by facsimile. Section 10.13 Paragraph Headings. The paragraph headings herein are for convenience in reference only and are not intended to define or limit the scope of any provision of this Agreement. Section 10.14 Patents and Trademarks. CONCESSIONAIRE represents that it is the owner of or fully authorized to use any and all services, processes, machines, articles, marks, names or slogans used by it in its operations under this Agreement. CONCESSIONAIRE agrees to save and hold harmless CORPORATION, its officers, employees, agents and representatives from any loss, liability, expense, suit or claim for damages in connection with any actual or alleged infringement of any patent, trademark or copyright arising from any alleged or actual unfair competition or other similar claim arising out of the operations of CONCESSIONAIRE under this Agreement. Section 10.15 Security. CONCESSIONAIRE shall cause its officers, contractors, agents and employees to comply with any and all existing and future security regulations or Security Plan adopted by CORPORATION or Eagle County pursuant to Part 107, Federal Air Regulations of the Federal Aviation Administration, as it may be amended from time to time. Section 10.16 Severability. If any provision in this Agreement is held by a court to be invalid, the validity of other provisions herein which are severable shall be unaffected. Section 10.17 Third Parties. This Agreement does not, and shall not be deemed or construed to, confer upon or grant to any third party or parties (except parties to whom the CONCESSIONAIRE may assign this Agreement in accordance with the terms hereof, and except any successor to CORPORATION any right to claim damages or to bring any suit, action or other proceeding against either CORPORATION or the FA\AGREETCAT Cashman Concession.wpd 24 CONCESSIONAIRE because of any breach hereof or because of any of the terms, covenants, agreements and conditions herein. Section 10.18 Entire Agreement. The parties acknowledge and agree that the provisions herein constitute the entire agreement and that all representations made by any officer, agent or employee of the respective parties unless included herein are null and void and of no effect. No alterations, amendments, changes or modifications, unless expressly reserved to the CORPORATION herein, shall be valid unless executed by an instrument in writing by all the parties with the same formality as this Agreement. Section 10.19 CONCESSIONAIRE's Warranty of Its Ability To Enter Agreement. CONCESSIONAIRE represents and warrants, which representation and warranty form a material part of the consideration of this Agreement without which CORPORATION would not enter into this Agreement, that it is authorized to and lawfully able to enter into and perform, and is under no prohibition against entering into and performing, this Agreement and that entering into this Agreement and performing pursuant to the terms thereof shall not constitute or cause a default or breach of any other contract, covenant or duty. [next page signature page] FAAGREETCAT Cashman Concession.wpd 25 C IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. CORPORATION Eagle County Air Terminal Corporation Tom C. Stone, President FAAGREETCAT Cashman Concession.wpd 26 go-, Z1� lit lio C, APPENDIX NO. 1 STANDARD FEDERAL ASSURANCES NOTE: As used below the term "contractor" shall mean and include the "CONCESSIONAIRE," and the term "sponsor" shall mean the "CORPORATION ". During the term of this contract, the contractor, for itself, its assignees and successors in interest (hereinafter referred to as the "contractor ") agrees as follows: 1. Compliance with Regulations. The contractor shall comply with the Regulations relative to nondiscrimination in federally assisted programs of the Department of Transportation (hereinafter "DOT ") Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time (hereinafter referred to as the Regulations), which are herein incorporated by reference and made a part of this contract. 2. Nondiscrimination. The contractor, with regard to the work performed by it during the contract, shall not discriminate on the grounds of race, color, sex, creed or national origin in the selection and retention of subcontractors, including procurement of materials and leases of equipment. The contractor shall not participate either directly or indirectly in the discrimination prohibited by section 21.5 of the Regulations, including employment practices when the contract covers a program set forth in Appendix B of the Regulations. 3. Solicitations for Subcontractors. Including Procurement of Materials and Equipment. In all solicitations either by competitive bidding or negotiation made by the contractor for work to be performed under a subcontract, including procurement of materials or leases of equipment, each potential subcontractor or supplier shall be notified by the contractor of the contractor's obligations under this contract and the Regulations relative to nondiscrimination on the grounds of race, color, or national origin. 4. Information and Reports. The contractor shall provide all information and reports required by the Regulations or directives issued pursuant thereto and shall permit access to its books, records, accounts other sources of information, and its facilities as may be determined by the sponsor or the Federal Aviation Administration (FAA) to be pertinent to ascertain compliance with such Regulations, orders, and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish this information, the contractor shall so certify to the sponsor of the FAA, as appropriate, and shall set forth what efforts it has made to obtain the information. 5. Sanctions for Noncompliance. In the event of the contractor's noncompliance with the nondiscrimination provisions of this contract, the sponsor shall impose such contract sanctions as it or the FAA may determine to be appropriate, including, but not limited to: FAAGREETCAT Cashman Concession.wpd 27 C) a. Withholding of payments to the contractor under the contract until the contractor complies, and /or b. Cancellation, termination, or suspension of the contract, in whole or in part. 6. Incorporation of Provisions. The contractor shall include the provisions of paragraphs 1 through 5 in every subcontract, including procurement of materials and leases of equipment, unless exempt by the Regulations or directives issued pursuant thereto. The contractor shall take such action with respect to any subcontract or procurement as the sponsor or the FAA may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, however, that in the event a contractor becomes involved in, or is threatened with, litigation with a subcontractor or supplier as a result of such direction, the contractor may request the sponsor to enter into such litigation to protect the interests of the sponsor and, in addition, the contractor may request the United States to enter into such litigation to protect the interests of the United States. FA\AGFEE \SCAT Cashman Concession.wpd 28 ( l APPENDIX NO. 2 STANDARD FEDERAL ASSURANCES NOTE: As used below, the term "DOT" means the United States Department of Transportation. 1. CONCESSIONAIRE for itself, representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree as a covenant running with the land that in the event facilities are constructed, maintained, or otherwise operated on the said property described in this agreement for a purpose for which a DOT program or activity is extended or for another purpose involving the provision of similar services or benefits, the CONCESSIONAIRE shall maintain and operate such facilities and services in compliance with all other requirements imposed pursuant to 49 CFR Part 21, Nondiscrimination in Federally Assisted Programs of the Department of Transportation, and as said Regulations may be amended. 2. The CONCESSIONAIRE for itself, representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree as a covenant running with the land: (1) that no person on the grounds of race, color, sex, creed or national origin shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities, (2) that in the construction of any improvements on, over, or under such land and the furnishing of services thereon, no person on the grounds of race, color, sex, creed or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination, (3) that the CONCESSIONAIRE shall use the premises in compliance with all other requirements imposed by or pursuant to 49 CFR Part 21, Nondiscrimination in Federally Assisted Programs of the Department of Transportation, and as said Regulations may be amended. FAAGUETCAT Cashman Concession.wpd 29 C11 APPENDIX NO. 3 NONDISCRIMINATION IN AIRPORT EMPLOYMENT OPPORTUNITIES CONCESSIONAIRE assures that it will comply with pertinent statutes, Executive Orders and such rules as are promulgated to assure that no person shall, on the grounds of race, creed, color, national origin, sex, age, or handicap be excluded from participating in any activity conducted with or benefiting from Federal assistance. This Provision obligates the CONCESSIONAIRE or its transferee for the period during which Federal assistance is extended to the AIRPORT program, except where Federal assistance is to provide or is in the form of personal property or real property or an interest therein or structures or improvements thereon. In these cases, this Provision obligates the CONCESSIONAIRE or any transferee for the longer of the following periods: (a) the period during which the property is used by the sponsor or any transferee for a purpose for which Federal assistance is extended, or for another purpose involving the provision of similar services or benefits; or (b) the period during which the AIRPORT sponsor or any transferee retains ownership or possession of the property. In the case of contractors, this Provision binds the contractors from the bid solicitation period through the completion of the contract. It is unlawful for AIRPORT operators and their lessees, tenants, CONCESSIONAIREs and contractors to discriminate against any person because of race, color, national origin, sex, creed, or handicap in public services and employment opportunities. FAAGREETCAT Cashman Concession.wpd 30 �j APPENDIX NO.4 LEASE PROVISIONS REQUIRED OR SUGGESTED BY THE FEDERAL AVIATION ADMINISTRATION A. Terminal Corporation agrees to operate the Leased Premises for the use and benefit of the public, more specifically as follows: 1. To furnish good, prompt, and efficient services adequate to meet all the demands for its services at the AIRPORT, 2. To furnish said services on a fair, equal, and non - discriminatory basis to all users thereof, and 3. To charge fair, reasonable, and non - discriminatory prices for each unit of sale or service, provided that Terminal Corporation may be allowed to make reasonable and non - discriminatory discounts, rebates, or other similar types of price reductions to volume purchasers. B. Terminal Corporation, for itself, its personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree as a covenant running with the land that: No person on the grounds of race, color, or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination in the use of said facilities. 2. In the construction of any improvements on, over or under such land and the furnishing of services thereon, no person on the grounds of race, color, or national origin shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination. 3. Terminal CORPORATION shall use the premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally Assisted Programs of the Department of Transportation- Effectuation of Title VI of the Civil Rights Act of 1964, as said Regulations may be amended. In the event of breach of any of the above non - discriminatory covenants, the County shall have the right to terminate the Lease and to re -enter and repossess the Leased Premises and the facilities thereon, and hold the same as if said Lease had never been made or issued. This provision does not become effective until the procedures of 49 CPR Part 21 are followed and completed, including expiration of appeal rights. F:IAGREE\ECAT Cashman Concession.wpd 31 C, C. Affirmative Action. Terminal Corporation assures that it will undertake an affirmative action program, as required by 14 CFR Part 152, Subpart E, to ensure that no person shall, on the ground of race, creed, color, national origin, or sex, be excluded from participating in any employment, contracting, or leasing activities covered in 14 CFR Part 152, Subpart E. Terminal CORPORATION assures that no person shall be excluded, on these grounds, from participating in or receiving the services or benefits of any program or activity covered by this subpart. The Terminal CORPORATION assures that it will require that its covered organizations provide assurance to the grantee that they similarly will undertake affirmative action programs and that they will require assurances from their suborganization, as required by 14 CPR Part 152, Subpart E, to the same effect. 2. Terminal Corporation agrees to comply with any affirmative action plan or steps for equal employment opportunity required by 14 CFR, Part 152, Subpart E, as part of the affirmative action program or by any Federal, state or local agency or court, including those resulting from a conciliation Lease, a consent decree, court order, or similar mechanism. Terminall Corporation agrees that state or local affirmative action plan will be used in lieu of any affirmative action plan or steps required by 14 CFR Part 152, Subpart E only when they fully meet the standards set forth in 14 CFR 152.409. Terminal Corporation agrees to obtain a similar assurance from its sub - lessees' covered organizations, and to cause them to require a similair assurance of their covered suborganizations, as required by 14 CFR Part 152, Subpart E. FAAGUETCAT Cashman Concession.wpd 32